Free Memorandum - District Court of Arizona - Arizona

DAWSON & ROSENTHAL, P.C. _____________________
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Gregg H. Temple, State Bar No. 009866 GREGG H. TEMPLE, P.C. 4835 E. Cactus Road, Suite 225 Scottsdale, AZ 85254-4196 (602) 808-0508 [email protected] Steven C. Dawson, State Bar No. 006674 Anita Rosenthal, State Bar No. 006199 6586 Highway 179, Suite B-2 Sedona, AZ 86351 (602) 494-3800 [email protected]

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA (1) Brett D. Leavey, Plaintiff, vs. (2) UNUM/Provident Corporation, a foreign corporation, and(3) Provident Life and Accident Insurance Company, a foreign corporation, Defendants. PLAINTIFF'S PROPOSED RESPONSE TO QUESTION FROM JUROR NUMBER FOUR Case No. CIV-02-2281 PHX SMM

Juror number four has posed the following question: "Is it the individual opinions of each juror as to how appropriate care is defined?" Plaintiff proposes that the question be answered as follows: You do not need to decide whether the care is appropriate because defendants agree that the care that Dr. Leavey has received and is receiving is appropriate under the terms of the policy. The parties also agree that, in order to be appropriate under the terms of the policy, the care does not need to be geared toward returning Dr. Leavey to dentistry nor do defendants have the right to dictate what care Dr. Leavey receives.
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DAWSON & ROSENTHAL, P.C. _____________________
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As to the first sentence, counsel for defendant have repeatedly acknowledged during this trial that appropriate care is immaterial because defendants are paying benefits. Mr. Breter, as the Rule 30(b)(6) representative of the defendants, testified that Dr. Leavey is receiving benefits because he is entitled to them under the terms of the policy. As to the second sentence, Mr. Breter testified that appropriate care does not have to be geared toward returning Dr. Leavey to dentistry and that defendants do not have the right to dictate the care that Dr. Leavey receives.1 This is consistent with the two legal rulings that this Court has made on the issue: In denying Defendants' Motion for Partial Summary Judgment Re: Accelerated Benefits, this Court held: Plaintiff notes that the Policy does not dictate that Provident Life direct his care nor does it require that the care be directed to returning the insured to his former occupation, and Defendant does not refute this contention. In addition, the Court's inspection of the policy did not reveal any inclusion of language regarding Provident Life's role in the treatment process. Order dated September 9, 2003, at page 4, line 25 through page 5, line 15. In the ruling on plaintiff's Motion for Partial Summary Judgment Re. Appropriate Care, this Court concluded: Defendants cannot condition the receipt of benefits on Plaintiff's agreement to follow a treatment plan geared toward returning him to work as a dentist. Memorandum of Decision and Order, August 9, 2004, at 7.

The linchpin of insurance policy interpretation is to ascertain the intent of the parties. Sparks v. Republican Nat'l Life Ins. Co., 132 Ariz. 529, 535, 647 P.2d 1127, 1133 (1982). The parties agree to these relevant parameters of the meaning of appropriate care.

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DAWSON & ROSENTHAL, P.C. _____________________
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When the jury requests clarification, the court has an obligation to "clear away the confusion with `concrete accuracy.'" Jazzabi v. Allstate Ins. Co., 278 F.3d 979, 986 (9th Cir. 2002); see also Shultz v. Rice, 809 F.2d 643, 650 (10th Cir.1986)(a trial court "has a duty to guide the jury toward an intelligent understanding of the legal and factual issues it must resolve"); Arnold v. Riddell, Inc., 882 F.Supp. 979, 997 (D.Kan.1995)(it is appropriate for the court to give a give a factually correct answer to the jury according to the undisputed evidence). Plaintiff also agrees with the Court's suggestion that each side be given fifteen minutes of additional closing argument to address the juror's question. The court has discretion to allow additional argument to ensure that the jury has an intelligent understanding of the legal and factual issues it must resolve, see, e.g., Williams v. Riedman, 339 S.C. 251, 283, 529 S.E.2d 28, 44-45 (S.C.App. 2000), and plaintiff requests that additional argument be allowed. Dated October 3, 2005 DAWSON & ROSENTHAL, P.C. and GREGG H. TEMPLE, P.C.

By_//Gregg H. Temple//____________________ Steven C. Dawson Anita Rosenthal 6586 Highway 179, Suite B-2 Sedona, AZ 86351 Attorneys for Plaintiff

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DAWSON & ROSENTHAL, P.C. _____________________
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I certify that on October 3, 2005 I electronically transmitted this document to the Clerk using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing to the following CM/EFC registrants: Stephen M. Bressler Ann-Martha Andrews Scott Bennett Lewis & Roca 40 North Central Phoenix, AZ 85004 Attorneys for Defendants // Gregg H. Temple//_________________________

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